Chapter 7 - Consideration of Current and/or Past Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense

The public charge inadmissibility determination is prospective, based on an applicant’s likelihood at any time in the future to become a public charge – that is, USCIS must evaluate the noncitizen’s likelihood of becoming primarily dependent on the government for subsistence through future receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

As described above, under the regulations, every public charge inadmissibility determination must include consideration of the noncitizen’s age; health; family status; assets, resources, and financial status; and education and skills; an Affidavit of Support Under Section 213A of the INA (if required); and the applicant’s current and/or past receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

USCIS considers current and/or past receipt of public cash assistance for income maintenance and long-term institutionalization at government expense in the totality of the circumstances, taking into account the amount, duration, and recency of the receipt.^[1] Current and/or past receipt of benefits alone, however, is not a sufficient basis to determine whether an applicant is likely at any time to become a public charge.^[2]

A. Most Noncitizens Are Not Eligible for Public Benefits

Relatively few noncitizens in the United States are both subject to the public charge ground of inadmissibility and eligible for the public benefits considered as part of the inadmissibility determination before adjusting their status to that of a lawful permanent resident (LPR).

Noncitizens who are eligible for public cash assistance for income maintenance or long-term institutionalization at government expense are often already LPRs or are in a group exempt from the public charge ground of inadmissibility.^[3]

B. Public Cash Assistance for Income Maintenance

Public cash assistance for income maintenance means:^[4]

• Supplemental Security Income (SSI);^[5]

• Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program;^[6] and

• State, tribal, territorial, or local cash benefit programs for income maintenance.^[7]

Public cash assistance for income maintenance, even for a short period of time, is considered as part of the totality of the circumstances analysis. But the length of time that has elapsed since the noncitizen has received cash benefits is also relevant: the longer the time since a noncitizen received such cash benefits, the less the past receipt would be a predictor of future receipt.^[8]

In addition, the longer the period that a noncitizen received cash assistance for income maintenance in the past and the greater the amount of benefits, the stronger the implication that the noncitizen is likely to become a public charge. For example, if a noncitizen receives a small amount of cash assistance for a limited period of time, such receipt would be unlikely to result in an adverse public charge inadmissibility determination (though receipt is but one consideration and is not outcome determinative on its own).^[9]

Evidence demonstrating the noncitizen’s ability to be self-supporting in the future may overcome the negative implication of any past receipt of such benefits.

C. Long-term Institutionalization at Government Expense

As part of a public charge inadmissibility determination, USCIS considers whether a noncitizen has received, is currently receiving, or is likely to receive long-term institutionalization at government expense, including in a nursing facility or mental health institution. As part of the consideration of long-term institutionalization, USCIS considers both permanent institutionalization as well as institutionalization for a long period of time short of indefinite duration, in the totality of the circumstances.

Long-term institutionalization at government expense is the only category of Medicaid-funded services (limited to institutional services provided under section 1905(a) of the Social Security Act) considered in a public charge inadmissibility determination.^[10] No other services paid for by Medicaid, including home and community-based services (HCBS), and no services provided under the Children’s Health Insurance Program (CHIP), are considered as long-term institutionalization at government expense.

In all circumstances, current and/or past long-term institutionalization at government expense is not alone a sufficient basis to determine that an applicant is likely at any time to become a public charge. Rather, it is one consideration in the totality of the circumstances.^[11]

Long-term institutionalization does not include imprisonment for conviction of a crime or institutionalization for short periods or for rehabilitation purposes.^[12] Long-term institutionalization also does not include sporadic or intermittent periods of institutionalization, even on a recurring basis, such as for caregiver respite care or behavioral health or substance abuse disorder treatment. HCBS are also not considered as long-term institutionalization at government expense.^[13]

In general, USCIS would consider a noncitizen to have been long-term institutionalized if they have been continuously institutionalized, were assessed for HCBS, offered HCBS, and made an informed choice to remain in an institution, or have been continuously institutionalized regardless of whether they were assessed for or offered HCBS but have not presented evidence demonstrating that such institutionalization violated their rights.

USCIS also considers any evidence provided by a noncitizen that they are or were institutionalized at government expense in violation of their rights, and, where such evidence is credible, it will have the tendency of offsetting evidence of current or past institutionalization.^[14]

1. Home and Community-Based Services

When examining a noncitizen’s long-term institutionalization, USCIS does not consider a noncitizen’s past, current, or future receipt of, or eligibility for, HCBS, even if they are offered at government expense, including through Medicaid.

HCBS help older adults and individuals with disabilities, such as intellectual or developmental disabilities, physical disabilities, and mental illnesses, fully participate in their communities and receive services in their own home or community. HCBS can promote employment and decrease reliance on costly government-funded institutional care.

In contrast to institutional care paid for by Medicaid, Medicaid-funded HCBS do not include payments for room and board, and therefore do not provide an individual’s total care for basic needs that is generally provided by an institution.

2. Institutionalization in Violation of Federal Law

There are some circumstances in which an individual may be institutionalized long-term at government expense in violation of federal anti-discrimination laws, including the Americans with Disabilities Act (PDF) (ADA) and Section 504 of the Rehabilitation Act (PDF).

The ADA requires public entities, and Section 504 requires recipients of federal funds, to provide services to individuals in the most integrated setting appropriate to their needs. Unjustified institutionalization of individuals with disabilities by a public entity is a form of discrimination under the ADA and Section 504. ^[15]

As noted above, the likelihood that a noncitizen will become a public charge at any time is determined by assessing the noncitizen’s likelihood of becoming primarily dependent on the government for subsistence as evidenced by long-term institutionalization at government expense (as well as any receipt of public cash assistance for income maintenance). However, in making this determination, USCIS considers evidence submitted by the applicant that their current, past, or potential future institutionalization violates federal law.^[16]

If an applicant believes that their institutionalization was in violation of federal law, they must submit evidence in support of this claim with their Application to Register Permanent Residence or Adjust Status (Form I-485).^[17] USCIS may also request such evidence after the filing of Form I-485. If USCIS issues a Request for Evidence, that request would only be sent to the applicant for adjustment of status (and their attorney or accredited representative).

Services available to some individuals may not be in full compliance with disability rights laws, such that, as noted, individuals who might otherwise receive HCBS are instead institutionalized at government expense. Individuals may submit evidence that their institutionalization violates federal law, and USCIS considers such evidence in the totality of the circumstances. Specifically, where such evidence is credible, it will have the tendency of offsetting evidence of current or past institutionalization.

Evidence suggesting that an individual may have experienced long-term institutionalization in violation of federal law may include, but is not limited to, documentation showing:

• The state’s HCBS waiting lists prevent an individual from receiving community-based services for which they are eligible;^[18]

• Enforcement-related action (complaint filed in court) by a federal civil rights agency (for example, U.S. Department of Justice or U.S. Department of Health and Human Services Office for Civil Rights (HHS OCR)) alleging non-compliance by a state, or other public entity, or a facility with federal civil rights laws that contributed to the individual’s institutionalization;

• An administrative decision, such as a letter of findings issued by the U.S. Department of Justice or HHS OCR under Title II of the Americans with Disabilities Act, 28 CFR 35.172(c) or HHS OCR under Section 1557 of the Affordable Care Act, 45 CFR 92.5, or Section 504 of the Rehabilitation, 45 CFR Parts 84 and 85;

• Settlement agreement, or a court-ordered consent decree that impacts the individual’s institutionalization;

• A plan of care (for example, person centered plan or individualized service plan) that fails to state whether the individual wants to leave the institution and could be served in the community; ^[19] or

• A discharge plan of care for the individual that does not document that the individual has been asked about their interest in receiving information regarding returning to the community, or indicate whether the individual could be served in the community. ^[20]

D. Receipt, Approval or Certification

USCIS determines an individual’s likelihood of becoming primarily dependent on the government for subsistence, as demonstrated by the noncitizen’s receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.^[21]

Such receipt occurs when a public benefit-granting agency provides these benefits to an individual listed as a beneficiary of such benefits. USCIS does not consider public benefits received by the applicant’s relatives, including children, or received by the applicant solely on behalf of third parties (including a member of the noncitizen’s household as defined in the regulation).^[22]

The applicant indicates their past or current receipt of public cash assistance for income maintenance or long-term institutionalization at government expense on Form I-485.

It is not considered “receipt” to apply for a public benefit on one’s own behalf or on behalf of another. Similarly, approval for future receipt of a public benefit on the noncitizen’s own behalf or on behalf of another is also not considered “receipt.”^[23]

However, to the extent that the noncitizen applies on their own behalf, USCIS may consider the application or approval for future receipt as part of all information or evidence in the record that is relevant in the totality of the circumstances. For instance, approval for future receipt of a public benefit on the noncitizen’s own behalf may indicate a probability of actual future receipt of public benefits by the noncitizen.^[24]

An applicant may supplement their application with an explanation of any temporary circumstances that gave rise to receipt of, or approval for, public cash assistance for income maintenance or long-term institutionalization at government expense.

E. Public Benefits Not Considered

As stated in 8 CFR 212.22(a)(3), in making a public charge inadmissibility determination, USCIS will not consider receipt of, or certification or approval for future receipt of, public benefits not referenced in sections 212.21(b)^[25] and (c),^[26] such as:

• Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs;

• Children’s Health Insurance Program (CHIP);

• Medicaid (other than for long-term use of institutional services under section 1905(a) of the Social Security Act);

• Housing benefits;

• Any benefits related to immunizations or testing for communicable diseases; or

• Other supplemental or special-purpose benefits.^[27]

USCIS also emphasizes the additional following programs and public assistance that are not considered in a public charge inadmissibility determination; however, the below list is not exhaustive:^[28]

• Treatments or preventative services related to COVID-19, including vaccinations;

• The use of home and community-based services (HCBS);

• Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)^[29] or comparable disaster assistance provided by state, tribal, territorial, or local governments;

• Benefits under the Emergency Food Assistance Act (TEFAP);^[30]

• Child and Adult Care Food Program (CACFP);

• School lunch programs;

• Cash payments that are provided for childcare assistance or other supplemental, special purpose cash assistance;

• Cash payments that are provided as part of pandemic or disaster relief funds, such as the American Rescue Plan Act;

• Food Distribution Program on Indian Reservations (FDPIR);

• Services provided by the Indian Health Service (IHS), tribes and tribal organizations under the Indian Self-Determination and Education Assistance Act (ISDEA),^[31] and Urban Indian Organizations (UIO), as defined at 25 U.S.C. 1603(29), that have a grant or contract with IHS under title V of the Indian Health Care Improvement Act (IHCIA), 25 U.S.C. 1603;

• Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) provided by local communities or through public or private nonprofit organizations;

• Attending public school;

• Child care related services including the Child Care and Development Block Grant (CCDBG) or Child Care and Development Fund (CCDF);^[32]

• Special Supplemental Nutrition Program for Women, Infants, and Children (WIC);^[33]

• Health insurance coverage through the Health Insurance Marketplace, state-based marketplaces, or the Small Business Health Options Program (SHOP) under the Affordable Care Act, and financial assistance for such coverage;

• Transportation vouchers or other non-cash transportation services;

• Housing assistance under the McKinney-Vento Homeless Assistance Act;^[34]

• Energy benefits such as the Low Income Home Energy Assistance Program (LIHEAP);^[35]

• Educational benefits, including, but not limited to, benefits under the Head Start Act;^[36]

• Student loans and home mortgage loan programs;

• Publicly funded scholarships and educational grants;

• Guaranteed income programs that are not equivalent to public cash assistance for income maintenance, in that they typically do not provide the primary source of income for recipients, are made available without income-based eligibility rules, or both;^[37]

• Foster care and adoption benefits;

• Earned benefits such as Social Security retirement benefits, government pensions, veterans’ benefits, and unemployment insurance; and

• Child Tax Credit (CTC), or other tax-related cash benefits including Earned Income Tax Credit (EITC); Additional Child Tax Credit (ACTC); Premium Tax Credit (PTC); Advance Payment of Premium Tax Credit (APTC); and state, local, or tribal tax credit.

USCIS also does not consider public benefits received by an applicant’s family members (including U.S. citizen children or other relatives).^[38]

F. Exclusion From Consideration of Receipt of Public Benefits In Certain Circumstances

1. Receipt of Public Benefits While a Noncitizen Is Present in a Category Exempt From or Received a Waiver of the Public Charge Ground of Inadmissibility

USCIS does not consider any public benefits received by a noncitizen during periods in which the noncitizen was present in the United States in an immigration category:

• That is exempt from the public charge ground of inadmissibility; or

• For which the noncitizen received a waiver of public charge inadmissibility.^[39]

However, public cash assistance for income maintenance or long-term institutionalization at government expense received before a noncitizen was in exempt status (or was in a category for which they had received a waiver of the public charge ground of inadmissibility) or after the noncitizen was no longer in an exempt status (or was in a category for which they had received a waiver of the public charge ground of inadmissibility) would be considered in a public charge inadmissibility determination in the totality of the circumstances, including consideration of any mitigating information that the applicant may wish to bring to USCIS’ attention.

2. Receipt of Public Benefits by Noncitizens Granted Benefits Available to Refugees

USCIS does not consider any public benefits that were received by noncitizens who, while not refugees, are eligible for resettlement assistance, entitlement programs, and other benefits available to refugees,^[40] including services provided to an “unaccompanied alien child.”^[41] This provision only applies to the categories of noncitizens who are eligible for all three types of support listed (resettlement assistance, entitlement programs, and other benefits) typically reserved for refugees.

For example, the U.S. government has resettled and continues to resettle our Afghan allies. This is a population invited by the government to come to the United States at the government’s expense in recognition of their assistance over the past 2 decades or their unique vulnerability were they to remain in Afghanistan.^[42]

In recognition of the unique needs of this population and the manner of their arrival in the United States, Congress explicitly extended benefits normally reserved for refugees to our Afghan allies.^[43] As part of an effort by the U.S. government to assist noncitizens impacted by the Russian invasion of Ukraine, Congress has also extended benefits normally reserved for refugees to certain Ukrainians.^[44]

Footnotes

[^ 1] See 8 CFR 212.22(a)(3) and 8 CFR 212.21(d). If an applicant has been approved for future receipt of a considered public benefit, that information may be considered in the totality of the circumstances. For more information on the totality of the circumstances assessment, see Chapter 4, Prospective Determination Based on the Totality of the Circumstances [8 USCIS-PM G.4].

[^ 2] See 8 CFR 212.22(a)(3).

[^ 3] See the Public Charge Resources webpage for a table that identifies the major categories of noncitizens who are generally subject to the public charge ground of inadmissibility and may be eligible for the federal cash assistance for income maintenance or long-term institutionalization at government expense prior to filing for adjustment of status. This table is provided for background purposes only and should not be used to determine eligibility for public benefits. Note that this table does not include state, tribal, territorial, and local cash assistance programs for income maintenance (often called “General Assistance” programs), or non-Medicaid programs that support long-term institutionalization at government expense.

[^ 4] See 8 CFR 212.21(b). For the definition of receipt, see 8 CFR 212.21(d).

[^ 5] See 42 U.S.C. 1381 et seq.

[^ 6] See 42 U.S.C. 601 et seq.

[^ 7] These programs are often called “General Assistance” in the state context, but also exist under other names. See 8 CFR 212.21(b).

[^ 8] See 87 FR 55472, 55518 (PDF) (Sept. 9, 2022).

[^ 9] See 87 FR 55472, 55525 (PDF) (Sept. 9, 2022).

[^ 10] See 8 CFR 212.21(c).

[^ 11] See 8 CFR 212.22(b).

[^ 12] See 8 CFR 212.21(c).

[^ 13] For more information about long term-institutionalization, see Chapter 2, Definitions, Section C, Long-term Institutionalization at Government Expense [8 USCIS-PM G.2(C)].

[^ 14] See 87 FR 55472, 55533 (PDF) (Sept. 9, 2022). For more information, see Subsection 2, Institutionalization in Violation of Federal Law [8 USCIS-PM G.7(C)(2)].

[^ 15] See Olmstead v. L.C., 527 U.S. 581 (1999). See U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.

[^ 16] See 8 CFR 212.22(a)(3).

[^ 17] See 8 CFR 212.22(a)(3). See the instructions for Form I-485.

[^ 18] See 87 FR 55472, 55534 (PDF) (Sept. 9, 2022).

[^ 19] See 42 CFR 483.100-138. See 42 CFR 483.20. See 42 CFR 483.21. Such a plan of care is to be included in a comprehensive assessment of the resident not less often than once every 12 months.

[^ 20] See 42 CFR 483.20. See 42 CFR 483.21. Such a discharge plan of care is to be included in a comprehensive assessment of the resident not less often than once every 12 months.

[^ 21] See 8 CFR 212.21(a). For more information regarding the public benefits considered in a public charge inadmissibility determination, see Section B, Public Cash Assistance for Income Maintenance [8 USCIS-PM G.7(B)], and Section C, Long-term Institutionalization at Government Expense [8 USCIS-PM G.7(C)].

[^ 22] See 8 CFR 212.21(f) (defining household).

[^ 23] See 8 CFR 212.21(d).

[^ 24] See 8 CFR 212.22(b). For more information about the totality of the circumstances determination, see Chapter 4, Prospective Determination Based on the Totality of the Circumstances [8 USCIS-PM G.4].

[^ 25] See 8 CFR 212.21(b).

[^ 26] See 8 CFR 212.21(c).

[^ 27] See 8 CFR 212.22(a)(3).

[^ 28] As there are multiple federal and state public benefits programs, USCIS is unable to list all programs not included within the public charge inadmissibility determination.

[^ 29] See Pub. L. 100-707 (PDF) (November 23, 1988).

[^ 30] See 7 U.S.C. 7501 to 7 U.S.C. 7517.

[^ 31] See Pub. L. 93-638 (PDF) (January 4, 1975).

[^ 32] See 42 U.S.C. 9858 to 42 U.S.C. 9858q.

[^ 33] See 42 U.S.C. 1786.

[^ 34] See 42 U.S.C. 11401.

[^ 35] See 42 U.S.C. 8621 to 42 U.S.C. 8630.

[^ 36] See Pub. L. 110-134 (PDF), 121 Stat. 1363 (December 12, 2007).

[^ 37] However, if a guaranteed income program functions like cash assistance for income maintenance in that it is income-based, and provides the primary source of support for the recipients, then it would be considered in a public charge inadmissibility determination.

[^ 38] See Chapter 2, Definitions, Section D, Receipt (of Public Benefits) [8 USCIS-G.2(D)].

[^ 39] See 8 CFR 212.22(d), 8 CFR 212.23(a), and 8 CFR 212.23(c).

[^ 40] Refugees as admitted under INA 207. Refugee services as described under INA 412(d)(2).

[^ 41] As defined under Section 462(g)(2) of the Homeland Security Act, Pub. L. 107–296 (PDF), 116 Stat. 2135, 2202 (November 25, 2002). See 8 CFR 212.22(e).

[^ 42] See DHS publication, Operation Allies Welcome (PDF).

[^ 43] See Extending Government Funding and Delivering Emergency Assistance Act, Pub. L. 117-43 (PDF) (September 30, 2021).

[^ 44] See Additional Ukraine Supplemental Appropriations Act of 2022, Pub. L. 117-128 (PDF) (May 21, 2022).